Unofficial Opinion 95-17

August 18, 1995

To:

Representative District 29

Re:

Under certain circumstances, the Environmental Protection Division may authorize special environmental projects in lieu of unimposed or unaccrued monetary penalties; however, the modification of the Consent Order here in question so as to reduce the amount of unaccrued stipulated penalties and require that an amount equal to the reduction be spent on development of a proposed Chattahoochee River Recreational Park would not appear to be authorized.

This is in response to your letter to this office dated July 27, 1995, wherein you ask whether the Georgia Environmental Protection Division (EPD) may reduce fines imposed on the City of Atlanta under the Georgia Water Quality Control Act (Act) through an administrative Consent Order and require that the amount of the reduction be used to finance a proposed Chattahoochee River Recreational Park.

On April 27, 1993, the Director of EPD (Director) issued administrative Consent Order No. EPD-WQ-1983 (Consent Order) to the City of Atlanta (City). This Consent Order acknowledged that the City had failed to initiate construction of the Utoy Creek and Clear Creek Combined Sewer Overflow (CSO) Treatment Facilities by October 31, 1992, as required by an earlier administrative Consent Order. The Consent Order also acknowledged that the City would fail to complete construction

of such CSO treatment facilities by December 31, 1993, as required by O.C.G.A. § 12-5-29.1. Consequently, the Consent Order required the City to pay EPD $1,000.00 per day per CSO treatment facility until construction had been initiated on the CSO treatment facilities. The Consent Order further required the City to pay a graduated daily monetary penalty for each CSO treatment facility, the construction of which was not completed by December 31, 1993. Under this Consent Order, the City is currently paying a stipulated penalty of $9,000.00 per day to EPD.

By letter to the Director from the City dated April 22, 1994, the City requested that the Consent Order be modified such that the stipulated penalty would be reduced by $60,000.00 per month for a period of twenty-two months and that this accumulated amount ($1,320,000.00) be used for Phase II of the creation of the Chattahoochee River Park.

The issue that you raise is whether the Director is authorized to modify his Consent Order so as to reduce the stipulated but unaccrued monetary penalties and direct that an amount equal to the reduction be spent on some other special environmental project; in this case, a proposed Chattahoochee River Recreational Park.

Official Code of Georgia Annotated § 12-5-52(a) provides that a person who violates any provision of the Act shall be liable for a civil penalty not to exceed $50,000.00 per day for each day during which such violation continues. If that person violates the Act through a separate and later incident within a 12-month period, he is liable for a civil penalty not to exceed $100,000.00 per day. Such penalties are imposed either through an administrative hearing presided over by an administrative law judge pursuant to O.C.G.A. § 12-2-2(c)(4), or through informal disposition by consent order in accordance with O.C.G.A. §§ 12-5-42(c), 12-5-52(b), and 50-13-13(a)(4). The law expressly provides that any monetary penalties collected by EPD pursuant to an order issued by the Director must be paid into the General Fund of the State Treasury and are available for appropriation by the General Assembly. O.C.G.A. §§ 12-5-52(b), 12-2-2(e).

As noted above, the Director may impose monetary penalties up to $100,000.00 per day through a consent order. He has discretionary authority in establishing the penalty amount. If the Director imposes penalties for future violations, it would appear that he could amend the amount of such penalties before they become due and owing if such amendment would further the course of pollution abatement. However, once a penalty accrues, same must be collected and paid into the General Fund of the State Treasury. Ga. Const. 1983, Art. VII, Sec. III, Para. II(a); O.C.G.A. §§ 45-12-92, 12-2-2(e); 1977 Op. Att'y Gen. 77-77; 1973 Op. Att'y Gen. 73-180.

Given the above, it would appear that if the Director negotiates a stipulated penalty and imposes same in a consent order, he would be authorized to modify that order so as to reduce any penalty that has not yet accrued and require in lieu thereof the implementation of an appropriate special environmental project. The same would be true for the initial imposition of stipulated penalties; i.e., he could reduce the amount of the penalty which would otherwise have been imposed if the penalty is paid in conjunction with the implementation of some special environmental project. This does not mean, however, that the Director is free to impose, by consent order or otherwise, any environmental project he so chooses. Official Code of Georgia Annotated § 12-5-42 empowers the Director to take action designed to bring about the elimination or reduction of illegal discharges of sewage, industrial waste, or other wastes into state waters. If the responsible party refuses to cooperate with the Director in the reduction or elimination of the detrimental effects of the discharge, the Director may issue an order "to bring about the reduction or elimination of the pollution." O.C.G.A. § 12-5-42(c). Given that the Director's order must be focused on the reduction or elimination of a particular detrimental discharge into state waters, it follows that there must be a distinct relationship or nexus between the unlawful discharge and the remedial action which the Director orders the violator to implement.

There is no question that the Consent Order was issued to eliminate the excessive discharge of pollutants by the City into the Chattahoochee River. Any project that would have a distinct relationship to this goal would appear to be a proper subject of the Consent Order. However, while the proposed Chattahoochee River Recreational project might well improve the quality of the Chattahoochee River through erosion control or otherwise, based upon the information in our possession, it would appear that such benefits would be only secondary or incidental. The primary purpose of the Park's construction would not be for the reduction of source pollution.

Therefore, based upon the information that I have been provided, it is my unofficial opinion that the Director is not authorized to modify the Consent Order by reducing the amount of future penalties and requiring that an amount equal to the reduction be spent on development of the proposed Chattahoochee River Recreational Park.